Thursday, June 12, 2008

Today, we also need look again at the Malaysian Courts, and ask whether it still is the place where all persons can go to seek justice. Is it a place where the poor can battle the rich in search of justice?

One of the tools that was used by those who wanted to prevent the courts from hearing the case on the merits was to raise one of the many preliminary objections on some technical non-compliance, which can get a case struck-off or dismissed without going into the merits of the claim. But this trend seem to have come to an end with judicial pronouncements like in the case of Megat Najmuddin, and then the amendment of the Rules of courts.

But sadly, this practice of striking out suits based on some technical objections still continues on, and today it seems that it may be by reason of the increased amounts of court cases/work that Judges and courts have to deal with, and the pressures from the higher-ups who insist on the clearing of "back-logs".

This is very sad - for people are not fools, and a person who finds his case be struck-off for some technicalities will not at all be satisfied - and hence an appeal, or the filing of yet another suit.....and at the end of the day, it means more cost and expenditure, it means more suits/applications/appeals... and it can also mean "NO JUSTICE".

Nowadays, it is also not uncommon that COST being awarded is EXTREME - In one matter, that I am aware whereby the suit was struck off for some technical non-compliance, the cost awarded for the matters before the Registrar itself comes to over RM200,000-00 - the poor person or company, the Plaintiff, will surely not be able to afford to pay this much and as a result we may be looking at a phenomena that if you take a matter to court against certain persons/companies - not only will your matter be struck-off BUT you may also end up being made a bankrupt and/or wound-up --- and the VICTIM who went to court for JUSTICE will be just further victimized and the GUILTY will escape scott-free. There is a need to formulate a policy for absolute minimum cost awards, and also a policy that should let matters be litigated on the merits completely before there be any cost taxed and/or paid out generally. REMEMBER access to justice must be for ALL - both the rich and the poor. After all, access to them alternate dispute resolution means like Arbitration and/or Mediation is too expensive and is not accessible to the POOR.

Cases filed should MOVE smoothly and should end soonest - and by end we mean that the dispute must be heard on the MERITS by a competent independent and fair Judge, and things like cost, etc should be done away with or kept to the bare minimum - i.e. no more than the cost of them filing fees, etc.. Whoever wins, will be awarded DAMAGES or COMPENSATION and that will be a fair sum - not that COST.

NOT ENOUGH COURTS AND JUDGES

The main problem then and today is still the fact that we really do not have enough courts and judges -

Federal Court chief registrar Datuk Tengku Maimun Tuan Mat (as reported in New Straits Times, 20/9/2006), disclosed that the number of judges in the country was low compared with other Commonwealth nations. He was quoted as saying that the Malaysian ratio is "2.4 judges to a million people - a far cry from the ratio in India (10.5), Australia (57.1), Britain (50.1) and Canada (75)."

The number of lawyers have increased, the literacy and legal literacy of the Malaysian people have increased... and as such clearly there will be more and more cases being filed in courts.

Now, there are rules that stipulate where you file a case -- and one of it is that it must be filed where the Defendant has its address, or where the crime /facts concerning the case occurred, etc..

Now, in Selangor we have 3 High Courts (for civil, commercial, family, probate. land, appellate and special powers, bankruptcy, etc) and 17 High Courts in KL(Appellate & Special Powers Division of the KL High Court - 2, Commercial Division Of The KL High Court - 7,Civil Division Of The KL High Court - 8). There is a definite shortage of High Courts in Selangor - Shah Alam. In other states, the number of High Courts are even lower, i.e. 1 or 2 - and these High Courts also have to deal with Criminal Matters. The problem is not "back-log" - the problem is clearly the shortage of courts and judges.

GET RID OF THAT PROBATIONARY JUDGE - THE JUDICIAL COMMISSIONER

There really is no need to nowadays use threats, etc to get the kind of Judges the PM and his government wants - for after all we now have that new "Probationary Judge ", them Judicial Commissioners who will not be made JUDGE unless the PM and/or the Government is satisfied.

GET RID OF THE PRACTICE THAT REGISTRARS CAN STRIKE OUT CASES OR GIVE JUDGMENTS IN HIGH COURT MATTERS

These Registrars (Deputy Registrars and Senior Assistant Registrars), who now sit in the High Court hearing applications which may lead to a case being struck-off, or even judgment entered into are an affront to Justice. Them Registrars are from the Judicial and Legal Service Commission - "under the Attorney General", and yesterday a Public Prosecutor tomorrow a lower court Judge or a Registrar.

Some of them are so young, new graduates with hardly a few months in practice and they decide to strike off High Court cases, or give judgment - and this is very wrong --- Certain cases can only be heard by the High Court, and here we have persons who should not even be Magistrates or Sessions Court Judges making "final" decisions....

WE NEED SERIOUS REFORMS -- WE NEED TO REMIND OURSELVES THE FUNCTIONS OF COURT - WE NEED TO ENSURE THAT EVERYONE, INCLUDING THE POOR SHOULD HAVE FULL ACCESS TO THE COURTS - WE NEED TO GET RID OF PRACTICES, ETC... THAT DISCOURAGE USAGE OF THE COURTS OR SHUTS PERSONS OFF FROM JUSTICE....

HENCE, the need for a ROYAL COMMISSION FOR THE REFORM OF THE MALAYSIAN JUDICIARY.

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